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Kavanaugh and the Ginsburg Standard

September 3, 2018 in Economics

By David B. Rivkin Jr., Andrew M. Grossman

David B. Rivkin Jr. and Andrew M. Grossman

Don’t blame Brett Kavanaugh when he demurs at his
confirmation hearing from answering questions on legal issues that
might come before the Supreme Court. It’s the senators who
will be in the wrong, for demanding commitments that no judicious
nominee could provide. To answer “direct questions on stare
decisis on many other matters, including Roe and health
care”—as Minority Leader Chuck Schumer has called
for—would itself be disqualifying.

That principle has come to be called the Ginsburg Standard,
after Justice Ruth Bader Ginsburg. As she explained in the opening
statement of her 1993 confirmation hearing: “A judge sworn to
decide impartially can offer no forecasts, no hints, for that would
show not only disregard for the specifics of the particular
case—it would display disdain for the entire judicial
process.” Or, as she later responded to a question about
constitutional protections against discrimination based on sexual
orientation: “No hints, no forecasts, no previews.”

It would be a mistake to associate the rule too closely with
Justice Ginsburg, who honored it inconsistently at her hearing, or
to view it as driven only by policy considerations. In fact, the
standard has deep roots in the law and history.

A nominee’s advance
commitment to decide a question a certain way is incompatible with
the appearance of fairness and impartiality that gives the law its
legitimacy.

Begin with the Constitution. The Appointments Clause provides
that judges, including Supreme Court justices, are appointed by the
president “with the Advice and Consent of the Senate.”
From the nomination of John Jay as the first chief justice in 1789
through the mid-1950s, public confirmation hearings were rare. Few
nominees attended them when they did occur, and only a handful
testified. Senators had no occasion to grandstand by demanding that
a nominee declare his stance on legal controversies.

Since hearings became the norm, the number of questions asked of
nominees has exploded, with recent nominees facing more than 700
apiece. Yet two aspects of the process haven’t changed. The
first is the refusal of nominees to opine on actual or hypothetical
cases that may come before the high court. The second is
senators’ griping in response. At a 1968 hearing, Sen. Sam
Ervin (D., N.C.) bemoaned that the nominee, Judge Homer Thornberry,
had “virtually created a new right not found in the
Constitution, which might well be designated as the judicial
appointee’s right to refrain from
self-incrimination.”

Ervin was wrong. Judges are appointed to exercise the
“judicial power.” As per the Constitution, this
involves deciding specific “cases” or
“controversies”—that is, concrete disputes
involving real facts, as opposed to abstract questions of law.
Judging, in turn, entails the …read more

Source: OP-EDS

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